Chun Hin Jeffrey Tsoi (Georgetown University) has posted Sovereign Indignity and Immunity (Penn. State Dickinson Law Review (Forthcoming)) on SSRN. Here is the abstract:
Sovereign immunity, even if not understood as a monarchical relic, embodies the notion of indignity for a government having to answer allegations of transgressions. This Article proposes an argument to challenge the doctrine’s theoretical basis, especially with respect to the federal government in federal court. But there is first a threshold question to be answered: Has the doctrine of federal sovereign immunity been practically mooted by the “death” of Bivens? One needs an express cause of action to sue the federal government absent Bivens, and if one has an express cause of action, under the recent Supreme Court decision Department of Agriculture Rural Development Rural Housing Service v. Kirtz, one doesn’t need to worry about federal sovereign immunity anyway. This Article refutes that reasoning. Sovereign immunity can still be implicated by causes of actions beyond the scope of Kirtz (including what remains of Bivens), where the doctrine remains a barrier to suit. The Article then explores a theoretical critique of federal sovereign immunity, what I call the “voluntary sovereign problem”: If the people of the United States is the sovereign and the three branches of federal government are its agents, then whenever the judiciary grants relief to a meritorious claim against the United States, the sovereign would be voluntarily paying the aggrieved. How would the judiciary granting relief “coerce” or otherwise threaten the “dignity” of the sovereign? The same argument does not apply to the sovereign immunity of states or Indian tribes in federal courts, but this Article’s analysis of sovereignty and immunity should, fundamentally, lead us to rethink whether respect due to a government’s autonomy must be conceptualized in terms of an indignity in getting “dragged into” courts for alleged violations of law.
